Whether an act of theft of another person's property at night by intrusion upon a residence of a person "in the daytime" can be punished as night-time intrusion larceny under Article 330 of the Criminal Act (negative)

Article 329 of the Criminal Act provides for larceny in Article 329 and immediately provides for night intrusion larceny in Article 330, and there is no penal provision regarding night larceny in Article 330. In light of the legislative form of Article 330 of the Criminal Act and the language and text of the elements thereof, the Criminal Act takes into account the risk of intrusion upon residence committed at night and takes into account the risk of intrusion upon residence, and it is reasonable to interpret that the Criminal Act takes into account the risk of intrusion upon residence and imposes heavy punishment for larceny accompanied by such act as night intrusion upon residence, and therefore, it is reasonable to interpret that there is no night intrusion upon residence when an intrusion upon residence took place during night.

Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1), 319(1), 329, and 330 of the Criminal Act

Defendant

Prosecutor

Attorney Seo Jin-jin

Seoul High Court Decision 2010No3058, 2010No61 decided December 23, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. Summary of the charge of the instant case’s charge of larceny at night.

Of the facts charged in the instant case, the summary of the theft by night-time room is as follows: “The Defendant came into the Dongdaemun-gu, Dongdaemun-gu, Seoul (hereinafter omitted) ○○○○○○○○○, which was operated by the victim on June 16, 2010, and came into an invasion upon the victim’s opening the door door door 202, knowing that it was opened. On the same day, at around 21:00 on the same day, the Defendant committed theft with the victim’s share of 30,000 won at the market price.”

2. The judgment of the court below

The court below held that ① Article 330 of the Criminal Act provides that “Any person who steals another’s property by intrusion upon a human habitation, guarded house, structure or ship or occupied room at night shall be punished by imprisonment with prison labor for not more than ten years.” In light of the language and text, it is difficult to interpret that “even at night” can be interpreted as where “influence” or “influence” or “influence” both through “influence” or “influence”, and that it is difficult to interpret that only “influence” can be used without “influence” or “influence”; ② even in case where another’s property is stolen at night due to intrusion upon a room at night, if it is discovered that a person was locked by intrusion into a room at night, then the crime of larceny by night is established, and if the person makes a statement that he was planned to larceny at night, it constitutes a crime of larceny by infringing upon another’s property, and thus, it can only be determined that the crime of larceny at night does not change in the principle of criminal punishment.

3. Judgment of the Supreme Court

Article 329 of the Criminal Act provides for larceny in Article 329 and immediately provides for larceny at night in Article 330, and there is no penal provision regarding larceny at night. In light of the regulatory form and language of Article 330 of the Criminal Act and the language and text of the elements thereof, the Criminal Act shall be deemed to pay attention to the risk of intrusion upon residence committed at night to punish a larceny accompanied by such act as a night-time intrusion upon residence and larceny. Therefore, if an intrusion upon residence took place during night, it is reasonable to interpret that it does not constitute larceny at night.

On the other hand, if the act of larceny takes place at night regardless of the time of intrusion upon residence, it is interpreted that the act of larceny is established if it takes place at night, or if it takes place at night even during the night, it would result in the establishment of night-time larceny even in a case where property is stolen by intrusion upon residence as in this case, as in this case, at night, which would result in a more severe punishment of night-time larceny. Furthermore, there is no provision of aggravated punishment on the ground that the act of larceny was committed at night, and there is no provision of aggravated punishment on the general property crime by deeming that it was committed at night. Furthermore, it is difficult to view that the act of larceny itself was committed at night and there is no danger of psychological anxiety or increase in damage, etc. of the victim compared to the night-time larceny. Furthermore, it is also difficult to view that the risk of larceny after night-time larceny was committed after the act of larceny, even if it was committed due to a delay in time prior to sunset, etc.

On the other hand, it is the established precedent of the Supreme Court that it should be deemed that the implementation has already been commenced at the stage of intrusion upon residence (see Supreme Court Decision 2006Do2824, Sept. 14, 2006, etc.). If the establishment of night residential intrusion larceny is recognized even in a case where property was stolen at night due to intrusion upon residence in the daytime, as appropriately pointed out by the court below, if the actor had been aware of it without commencement of larceny due to intrusion upon residence in the daytime, it would be an attempt to commit the night residential intrusion larceny, and if the perpetrator planned the night larceny, it would be recognized that the crime of intrusion upon residence would be established, and ultimately, it would result in unreasonable result that the establishment of the crime depends on the actor’s assertion.

In full view of the above various points, it is reasonable to view that the act of theft of another's property by intrusion upon the residence, etc. of a person during the night does not constitute night larceny under Article 330 of the Criminal Act.

Therefore, the court below is just in light of the legal principles as seen earlier, which affirmed the judgment of the court of first instance which acquitted the Defendant of the larceny in night room, among the charges of this case, and there is no error in the misapprehension of legal principles as to the establishment of night room larceny as alleged in the ground of appeal.

4. Meanwhile, according to the records, the prosecutor submitted a written appeal stating "the whole of the defendant's case (except for the case of custody)" column in the petition of appeal, and the prosecutor is deemed to have filed an appeal against a medical treatment and custody case as long as a prosecuted case was lodged against the defendant (Article 14(2) of the Medical Treatment and Custody Act). Since the prosecutor did not submit any grounds of appeal as to the remaining part of the defendant's case and the part of the medical treatment and custody case except for the part of night room intrusion theft among the judgment below, the appeal shall be dismissed

5. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)